Silver lining for organic farmers in Monsanto suit

On June 10, The U.S. Court of Appeals for the Federal Circuit issued a ruling in favor of Monsanto in a lawsuit filed against the seed industry giant by Organic Seed Growers & Trade Association (OSGATA), et. al., in 2010.

The suit had been originally heard and dismissed by Judge Naomi Buchwald on Feb. 24, 2011, in Federal District Court in Manhattan. The suit was then appealed to the court issuing the recent ruling.

OSGATA is the Colorado organization that brought the suit on behalf of 60 family farmers, seed businesses and other organic agricultural organizations. As reported previously in Boulder Weekly, the suit was filed pre-emptively by farmers to protect themselves from being sued for patent infringement by Monsanto should any of their crops become contaminated by Monsanto’s patented seed traits via wind blow or other uninvited means. OSGATA’s suit noted that the seed giant has a history of aggressively asserting its patent rights on farmers who have found themselves unintentionally in possession of Monsanto’s patented seeds. To date, Monsanto has filed 144 suits and forced 700 settlements in its efforts to defend the company’s transgenic seed patents against unknowing growers.

Despite the legal setback, there may well be a victory of sorts for OSGATA and organic farmers everywhere to be found in the court’s final analysis and decision on the case.

In its final ruling, the court wrote, “While Monsanto’s representations are not a covenant not to sue, they have a similar effect. If we rely on Monsanto’s representations to defeat the appellants’ declaratory judgment claims (as we do), those representations are binding as a matter of judicial estoppel. It is well-established that a party who successfully argues one position is estopped from later adopting a different position in a case involving the same patent.”

The Monsanto “representations” that the court is referring to are contained in a paragraph found on Monsanto’s website that was also reiterated verbally on multiple occasions in the courtroom. Monsanto’s website reads, “It has never been, nor will it be Monsanto policy to exercise its patent rights where trace amounts of our patented seeds or traits are present in farmers’ fields as a result of inadvertent means.”

The court found that this language now makes it illegal in the future for Monsanto to sue any more farmers whose crops have become contaminated with the company’s patented traits “as a result of inadvertent means.” Considering that 844 farm families had previously experienced the wrath of Monsanto’s lawyers, this is good news for the organic foods movement.

But there is a catch. The devil is, as always, in the details. According to court documents, Monsanto made an oral argument that made it clear that “its view of what constitutes an ‘inadvertent infringer’ is quite narrow, excluding those growers whose crops become accidentally contaminated, and who do not treat their fields with Roundup, but who, knowing of the contamination, harvest and replant or sell the seeds.”

Monsanto further argued, and the court agreed, that “trace amounts” of its patented seed would be legally defined as 1 percent of a farmer’s crop. This is significant because the USDA has never bothered to define or set an upper limit on what constitutes a “trace” amount of patented seed contamination.

In other words, the federal courts allowed Monsanto to make the 1 percent decision all by itself, which means that the company can still sue farm families who harvest a crop containing more than 1 percent Monsanto contaminated seed, even if the farmers are unaware of the contamination and did nothing to cause it.

If a little windblown Monsanto seed infects an organic farmer’s crop one year, and part of the contaminated plants are held back for the next year’s seed, the percentage of Monsanto patented seed within the farmer’s field could go up each year, unbeknownst to the farmer.

While none of the farmers participating in the OSGATA suit had experienced more than 1 percent contamination to a crop, the attorneys for the farmers told the court that they were aware of farmers in that predicament.

We have likely not seen the last lawsuit by Monsanto against a farm family in possession of its patented seeds by no fault of its own, but perhaps such occurrences will now be less frequent with this ruling.

But the court made it clear that this issue isn’t going away when it concluded that although the farmers in the suit were not claiming that their crops had already been contaminated by Monsanto’s patented seed, that outcome is nearly impossible to avoid in the future. The ruling stated, “The district court held that it is likely inevitable that conventional crops will be contaminated by trace amounts of wind-blown pollen or seeds from genetically modified crops or other sources … Monsanto acknowledges that conventional crops could be exposed to ‘cross-pollination from nearby fields where biotech crops are grown, and that they might inadvertently contain traces of Monsanto biotech genes (because, for example, some transgenic seed or pollen blew onto the grower’s land).’”

OSGATA issued a press release after the court’s ruling that says the court has made it clear that Monsanto can’t sue farmers for trace amounts of contamination that inadvertently finds its way into organic and conventional crops. The release also stated that the ruling in no way prohibits farmers from suing Monsanto as a result of its seeds contaminating their fields.